I have signed the majority opinion in this very close case. If the requests for admission merely related to such matters as the authentication of documents or the truth of subsidiary facts, I would vote to affirm. As the majority opinion points out, however, the requests here were quite different; without really expecting an affirmative response the defense first asked plaintiff whether he admitted that he did not have a case. The expected denial then was to serve as the basis for interrogatories. Plaintiff’s failure to deny must have come as a pleasant surprise.
Under such circumstances the policy favoring a trials on the merits is overwhelming. The trial court’s refusal to grant relief under section 473 in *239effect made it inevitable that dismissal of the action would be the true sanction for plaintiff’s counsel’s dereliction. Surely the prejudice, if any, to defendants was not such that a lesser punishment—imposed as a condition to relief under section 473—would not have sufficed.
Grodin, J., concurred.